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Everything Might Be Bigger and Better In Texas...Except CBD Laws

By Jacqueline Havelka

May 15, 2018

Texas has one of the most restrictive medical marijuana laws in the country. The state allows CBD, but only to treat intractable epilepsy. Patients wishing to use CBD must have recommendations from not one but two neurologists. Still, the Texas Department of State Health Services (DSHS) wants to crack down even more. In March, DSHS caused massive confusion in the state when they tried to pull CBD products from shelves. DSHS said all CBD had to go, even if it wasn’t derived from cannabis and even if it contained no THC.

The Lone Star state’s cannabis industry says DSHS has gone too far, and they’re stepping in to change the outcome. The industry provided massive information during the open DSHS period for public comment. Now, the final decision rests in the hands of DSHS commissioner Dr. John Hellerstedt.

So what’s all the fuss? DSHS views CBD as an adulterant, a substance derived from another substance that is illegal. In short, CBD is not a legal nutritional supplement so it can’t be added to foods or other products, in DSHS’s view. Texas says CBD is specified as a controlled substance on the Drug Enforcement Agency’s (DEA) list.

CBD is found in marijuana and industrial hemp. Although the two plants are both cannabis sativa and are very similar, one plant is legal (hemp) while cannabis is not. Federal law defines hemp as a cannabis sativa plant with THC under 0.3 percent. Cannabis sativa plants with higher THC are considered marijuana, banned on a federal level as a Schedule I substance on the DEA’s Controlled Substances Act list. Since 2014, American farmers have been able to legally grow industrial hemp, thanks to the 2014 Farm Bill. Furthermore, America has always been able to import industrial hemp from other countries to use its fibers and other plant parts to make soap, fiber products, and other things.

DSHS is grappling with the issue. They’re also weighing how to deal with the massive influx of CBD product being sold by other states and by online retailers.

One of the concerns that industry has is that if Texas goes through with the CBD ban, the state will not only be hurting the cannabis industry but also the fledgling hemp industry. Farmers have only been growing it since 2014, and a move in the wrong direction by Texas would do “devastating and irreparable damage to the emerging hemp industry,” according to industry insiders.

The move would also set Texas back to the dark ages regarding the use of CBD products for medical ailments. The Texas Cannabis Industry Association (TCIA) has been very outspoken about the DSHS move. TCIA says that DSHS didn’t even participate in the state discussions on the new low-THC medical marijuana program, and as such, questions whether DSHS has any right to make their latest decision.

“Due to its nonexistent involvement throughout the legislative process, (the DSHS agency) lacks the education and understanding of how CBD and THC from hemp products should be regulated,” said Richard Cheng, attorney for TCIA.

DSHS is holding firm, and says it will make its final decision soon, but gave no timeline. A spokesperson for DSHS said this is not new; “the health agency has detained CBD products in the past.” The state legislature won’t be reviewing their decision because they view it as enforcement of an existing rule. So it’s all up to DSHS.

TCIA says that Texans are safely consuming CBD now and should be allowed to continue. They reiterate how far behind Texas is related to medical treatment as well as recreational use of CBD.